The Supreme Court is something completely different to its nine robed members than it is to professional political people. Watch interviews of recent and currently sitting justices, or read their memoirs and treatises, and see how different the conceptions are.
Justices tend to demonstrate a sense of deep reverence for their court, a sense of reserve considering the solemnity of their job. For politicos, it’s all base and transactional.
Former New York Times reporter Linda Greenhouse, who spent several decades following the high court, wrote a recent column about Justice Amy Coney Barrett following her vote alongside Justices Clarence Thomas, Samuel Alito, Brett Kavanaugh, and Neil Gorsuch to enjoin New York Gov. Andrew Cuomo from enforcing his occupancy limits on houses of worship.
Greenhouse estimates that by voting in the Diocese of Brooklyn’s favor, Barrett “chose to align herself with what I call grievance conservatism,” of which Justice Alito is the embodiment, she says. Grievance conservatism is “conservatism with a chip on its shoulder, fueled by a belief that even when it’s winning, it’s losing, and losing unfairly.”
Greenhouse’s notion of “winning” is a reductive and extremely superficial treatment of the court’s decision. It’s not within her column to consider that the justices may well be interested in something other than getting a leg up in some meta-cultural sense, or that there is any serious question to be answered here at all. No, Greenhouse dismisses the court’s decision as one made “in the name of religious freedom.” Startling is how casually she puts down the issue of free exercise. She writes as if it has no staying power, this guarantee of the Constitution.
For his part, former Obama administration official Ben Rhodes said following the court’s decision that we are all bedeviled by an “illegitimate 5-4 SCOTUS majority overturning a policy to put more lives in danger.” Their language suggests that Greenhouse and Rhodes are frightened at even the specter of free exercise. Really, neither quite makes a strong argument for a pandemic check on free exercise. They argue instead something about the court’s majority.
Greenhouse: “History will record the choice Justice Barrett made in the court’s Nov. 25 decision as the first moment of fruition for the hopes and fears engendered by her abrupt election-eve ascension to the Supreme Court following Justice Ginsburg’s death in September.” Will it? Besides, Democrats on the Senate Judiciary Committee didn’t foretell this as the way in which Barrett would make democracy suffer.
Importantly, the court did not deliver a blow to any prominent liberal social aim. Same-sex marriage wasn’t relitigated and defeated, nor abortion, nor Obamacare. The court said that Cuomo couldn’t all but prohibit worship while the diocese appeals a lower-court ruling on the governor’s restrictions. Shocking. Radical. Threatening!
This was queued up. Greenhouse-types and Rhodes-types have been conditioned to interpret decisions of this court, depending on the construction of the majority, without respect to the merits but with everything interpreted according to political conditions external to the court. It was because Rhodes didn’t like the circumstances of Barrett’s nomination, or Barrett herself, that he cried that the majority was illegitimate — not because of a sincerely held belief in the minority’s mootness claim.
The wisdom of literary critic Kenneth Burke serves a particular use here. Burke summarizes the concept of trained incapacity as “the state of affairs whereby one’s very abilities can function as blindness.” Their narrow critical faculty leads Greenhouse and Rhodes away from important questions about the court’s treatment of religion and away from the compelling answer it offered. That kind of ideological blindness inspired this Burke dictum: “When criticism can do so much for us, it may have got us just to the point where we greatly require still better criticism.”
The court has since granted similar relief to California’s houses of worship and may do so for Kentucky’s religious schools. If it rules in favor of the schools, presumably those decisions will further delegitimize the court for Rhodes, though I suspect that if the court upholds the Affordable Care Act, which most bettors seem to anticipate, Rhodes won’t venture to undermine it if Barrett and company vote in the majority.
